Please do ban noncompetes, emergency physicians urge FTC

Hospitals and the physicians who practice in their emergency rooms do not see eye to eye on the Federal Trade Commission's proposed rule to ban noncompete clauses in employment contracts. 

The American College of Emergency Physicians submitted a letter to the FTC March 7, urging the federal agency to "finalize the regulation as proposed to help address the current anticompetitive conditions faced by many emergency physicians that limit their right to freely practice medicine in their communities." The FTC proposed a rule to ban employers from imposing noncompetes on their workers in January. 

The ACEP represents more than 38,000 emergency physicians, emergency medicine residents and medical students. 

"Unlike many other specialties, emergency physicians do not have a 'book of business' of existing patients with whom they have established and ongoing relationships," the college wrote in its letter. "If they leave to go to another group or hospital, no patients will follow them to their new practice, so their departure doesn't lose their previous employer any business."

The group did note concern about imbalanced competition if the proposed rule is only applicable to for-profit hospitals, given that the majority of U.S. hospitals operate under nonprofit status. The letter contains quotes from members, one of whom expressed worry about such a noncompete ban effectively "siphoning physicians from small groups to big hospital chains." 

"While a ban, if finalized, that exempts non-profits could still bring significant scrutiny to noncompetes and new pressures for their elimination, we remain concerned about an unlevel playing field and request the Commission to further explore such potential ramifications and provide guidance, where possible, to address it," the ACEP wrote.

The ACEP's position runs counter to that of the American Hospital Association, which submitted a letter in February to the FTC opposing the proposed ban on noncompetes. 

"The proposed regulation errs by seeking to create a one-size-fits-all rule for all employees across all industries, especially because Congress has not granted the FTC the authority to act in such a sweeping manner," the AHA, which represents nearly 5,000 hospitals and health systems, wrote. "Even if the FTC had the legal authority to issue this proposed rule, now is not the time to upend the health care labor markets with a rule like this."

The FTC extended the public comment period for the proposed rule from March 20 to April 19. 

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